Opinion
No. 4-026 / 03-0478
Filed February 27, 2004
Appeal from the Iowa District Court for Scott County, John A. Nahra And J. Hobart Darbyshire, Judges.
John Lindsey appeals from his convictions, following a stipulated trial to the court, for possession with intent to deliver crack cocaine and failure to affix a drug tax stamp. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Donald Frank, and Robert Weinberg, Assistant County Attorneys, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
John Lindsey appeals from his convictions, following a stipulated trial to the court, for possession with intent to deliver crack cocaine and failure to affix a drug tax stamp. He contends the court erred in denying his motion to suppress and that there was insufficient evidence to convict him for failure to affix a drug tax stamp. We affirm in part, reverse in part, and remand
I. BACKGROUND FACTS AND PROCEEDINGS.
The record reveals the following events occurred on October 27, 2001. A man was shot outside his residence at 1317 North Gaines Street in Davenport at approximately 3:00 p.m. Several Davenport police officers were involved in the investigation of that shooting. Two named males were identified as suspects. They had been in a vehicle involved in the shooting. Neither of those males was the defendant in this case, Lindsey. The police also had information from witnesses indicating a second car had been involved in the shooting, but they had no information regarding the car or the identity of the suspect or suspects associated with the second car.
Officers subsequently found one of the named suspects and obtained consent to search a residence at 1318 38th Street, where the suspect apparently lived. Several officers searched the residence for weapons and additional suspects. It is unclear from the record how many of the known suspects were found at the residence during the search. However, it is clear not all of the suspects had been accounted for, nor had any weapons been found when the police stopped Lindsey.
The officers began to leave the residence at 1318 East 38th Street at approximately 8:15 p.m. when a car pulled up to the east of the driveway leading to the rear of the residence and parked. The car was driven by a female and there was a male passenger who was later identified as the defendant Lindsey. Lindsey got out of the passenger side of the car and began walking on the sidewalk in the direction of the residence which had just been searched. Several officers testified that when Lindsey observed the uniformed officers he abruptly stopped before reaching the building, turned around, and quickly returned to his vehicle.
Officer Brown was suspicious of Lindsey's behavior and he asked other officers to assist him in stopping Lindsey. Officers Brown, Clark, and Proehl all testified that they were suspicious of Lindsey's behavior based on the fact they were investigating a shooting, they were looking for suspects and weapons in the residence toward which Lindsey appeared to be heading, and they believed he could have been one of the suspects involved in the shooting. Officer Proehl also testified that despite the fact he had not seen Lindsey engaged in any criminal activity he was still concerned about the possibility Lindsey might be in possession of a weapon, based on Lindsey's actions when he saw the police.
Officer Gina Clark ordered Lindsey to stop by yelling "stop, police" as he was opening the door to get back into the vehicle. She then took hold of his arm, told him to put his hands above his head, and conducted a pat down for weapons. The female driver of the vehicle was fidgeting and kept taking her hands off the steering wheel and putting them on the seat despite being told repeatedly by Officer Marxen to keep her hands where he could see them. Eventually, one of the officers asked the driver to get out of the vehicle. As she did so Officer Marxen observed her drop a clear plastic baggy with a white substance in it on the seat with her left hand Subsequent investigation and testing showed the baggy contained twenty individually wrapped rocks of crack cocaine. Officer Proehl testified that both the driver and Lindsey ultimately told him the crack was Lindsey's, and Lindsey told him he was in the process of delivering it to the residence that was being searched when he saw the officers and attempted to leave.
The State charged Lindsey, by trial information, with possession of crack cocaine with intent to deliver, in violation of Iowa Code sections 124.401(1)(c)(3) (2001) and 124.206(2)(d), and failure to affix a drug tax stamp, in violation of Iowa Code sections 453B.1(3)(d), 453B.3, 453B.7(4), 453B.12, and 703.1. Lindsey filed a motion to suppress all evidence obtained during his apprehension and the subsequent search of the vehicle, contending it was obtained in violation of his right to be free from unreasonable search and seizure as guaranteed by the state and federal constitutions. Following hearing the trial court denied the motion to suppress. Lindsey then waived jury trial and stipulated to a trial based upon the trial information, police reports, lab reports, transcripts of specified depositions, his motion to suppress and brief in support thereof, the State's resistance to his motion, and the trial court's ruling on the motion. The stipulation specifically excluded the minutes of testimony from consideration by the court.
The trial court found Lindsey guilty as charged based on the stipulated evidence and sentenced him to an indeterminate term of ten years on the possession with intent to deliver charge and an indeterminate term of five years on the drug tax stamp violation. The court ordered the sentences to run consecutively. Lindsey appeals.
II. SCOPE AND STANDARD OF REVIEW.
The Fourth Amendment to the United States Constitution guarantees a person's right to be free from unreasonable search and seizure. We review this constitutional question de novo in light of the totality of the circumstances as shown by the record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). "We give deference to the district court's fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings." Id. III. MERITS.
The rights guaranteed by the Fourth Amendment apply to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1694, 6 L.Ed.2d 1081, 1090 (1961).
Lindsey appeals his convictions contending the court erred in denying his motion to suppress and that there was insufficient evidence to convict him of the drug tax stamp violation. The State agrees there was nothing in the stipulated evidence before the court showing that the drugs found by the police did not bear the required drug tax stamps and concedes there was not sufficient evidence to convict Lindsey of the drug tax stamp violation. We agree. Accordingly, we reverse the judgment of conviction for failure to affix a drug tax stamp and remand the case to the district court for dismissal of this charge. See State v. Westeen, 591 N.W.2d 203, 211 (Iowa 1999) (reversing conviction and remanding for dismissal of charge on which defendant was entitled to judgment of acquittal based on insufficiency of the evidence).
We turn now to the contested issue in this appeal, Lindsey's claim the trial court erred in denying his motion to suppress.
A. Applicable Law.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. Evidence obtained in violation of this provision is inadmissible in a prosecution, no matter how relevant or probative the evidence may be. State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995). The Fourth Amendment requires a police officer have reasonable cause to stop an individual for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 21, 88 So. Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968); State v. Tompkins, 507 N.W.2d 736, 738 (Iowa Ct. App. 1993). To meet the reasonable cause standard a police officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch. State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995) (citing Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, 308 (1990)). "An investigatory stop is considered a seizure within the meaning of the Fourth Amendment and must be `supported by reasonable suspicion to believe that criminal activity may be afoot.'" United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003) (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740, 749 (2002)).
A reviewing court must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. In forming a basis for suspicion, officers may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. While an officer's reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.
Id. (Internal citations and quotations omitted).
When a stop is challenged on the basis that reasonable cause did not exist, the State must show that the stopping officer had "specific and articulable cause to support a reasonable belief that criminal activity may have occurred. . . . If the State fails to meet its burden, the evidence obtained as a result of the stop must be suppressed.
State v. Lamp, 322 N.W.2d 48, 51 (Iowa 1982) (citations omitted), overruled in part on other grounds by State v. Heminover, 619 N.W.2d 353 (Iowa 2000).
"The principal function of an investigatory stop is to resolve the ambiguity as to whether criminal activity is afoot." State v. Richardson, 501 N.W.2d 495, 497 (Iowa 1993). "The purpose of an investigatory stop is to allow a police officer to confirm or dispel suspicions of criminal activity through reasonable questioning." State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002) (citing United States v. Hickman, 523 F.2d 323, 327 (9th Cir. 1975)). "Seemingly innocent activities may combine with other factors to give an experienced police officer reasonable grounds to suspect wrongdoing." State v. Bradford, 620 N.W.2d 503, 508 (Iowa 2000) (quoting State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997)). Wholly lawful conduct may create reasonable suspicion for an investigatory stop when considered in light of other information known to law enforcement. United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586-87, 104 L.Ed.2d 1, 11-12 (1989).
B. Discussion.
With these principles in mind we examine the record in this case. The only contested issue on appeal is whether the officers had reasonable cause or suspicion to stop Lindsey for investigatory purposes. Lindsey argues he merely wished to avoid contact with the police officers and that he had the right to do so. He contends he simply turned around when he saw the officers and walked back to his car, he did not attempt to flee, there was no pursuit, and he was cooperative with the officers when he was detained. Therefore, he argues the record fails to demonstrate clear and articulable facts giving rise to a sufficient suspicion that criminal activity was afoot to justify the investigatory stop.
It is true only Officer Brown stated in his deposition that Lindsey "ran" back to his car. Officer Proehl testified Lindsey returned to his car at a "quicker pace" than when walking away from the car, and Officer Clark testified he was walking "fast" or "quickly" back to his car. Regardless of precisely how Lindsey returned to his vehicle, it is clear from the testimony that after he saw the uniformed police officers he stopped abruptly and returned to his car more quickly than he left it. Furthermore, contrary to Lindsey's assertion in his brief that the trial court found he had "ran back to his car," the trial court made no such finding. Rather, it merely found that he had "rapidly moved back to the car." We agree with the court's characterization of the evidence and find that Lindsey's actions could be considered flight or attempted flight for purposes of determining reasonable cause for an investigatory stop.
"[H]eadlong flight — whenever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Kreps, 650 N.W.2d at 645 (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 576-77 (2000)). However, our supreme court has determined that flight alone does not support a reasonable suspicion to justify an investigatory stop. See id. at 647-48 (finding that vehicle's evasive action did not in itself suggest reasonable suspicion to support an investigatory stop, but that the evasive action plus the fact the passenger exited and ran from the moving vehicle gave reasonable grounds for stop). The flight must be accompanied by some other suspicious activity or additional information known to law enforcement to justify an investigatory stop. Id.; see also Illinois v. Wardlow, 528 U.S. 119, 125-26, 120 S.Ct. 673, 676-77, 145 L.Ed.2d 570, 576-77 (2000). We conclude these additional factors are present in this case.
Here several officers observed Lindsey arrive in a car, pull up on the same side of the street as the residence they had been searching in connection with a shooting which had occurred only a few hours before, and park just to the east of the residence's driveway. Lindsey then got out of the vehicle and began walking toward the residence in question. Furthermore, at that point the police had already been informed there were two cars and at least three suspects involved in the earlier shooting. The police were searching the residence for additional suspects and weapons. When Lindsey arrived, the officers only had one or two suspects in custody and had found no weapons during the search. Thus, there was still at least one suspect at large and the weapon or weapons used in the shooting were unaccounted for.
Although Lindsey's abrupt departure was not "headlong flight," we conclude that these various factors combined with Lindsey's flight or attempted flight gave officers reasonable cause to conduct an investigatory stop. See Kreps, 650 N.W.2d at 647-48(flight plus passenger's suspicious actions justified investigatory stop); State v. Cline, 617 N.W.2d 277, 283 (Iowa 2000), abrogated on other grounds by State v. Turner, 630 N.W.2d 601 (Iowa 2001) (finding defendant's presence on property where drug dealing had occurred plus her subsequent flight when police arrived supported reasonable suspicion to believe she may be involved in criminal activity); Richardson, 501 N.W.2d at 497 (flight of defendant when he saw police approaching plus the fact he was parked next to a chain link fence in a nonresidential area at a time when all surrounding businesses were closed in an area that had frequently been burglarized gave rise to reasonable cause to conduct an investigatory stop).
The fact the officers testified they did not observe any criminal activity or wrongdoing by Lindsey does not mean the investigatory stop was unreasonable. As set forth above, seemingly innocent activities may combine with other factors to give an experienced police officer reasonable grounds to suspect wrongdoing, Bradford, 620 N.W.2d at 508, and completely lawful conduct may create reasonable suspicion for an investigatory stop when considered in light of other information known to law enforcement. Sokolow, 490 U.S. at 9-10, 109 S.Ct. at 1586-87, 104 L. Ed.2d at 11-12. We conclude that Lindsey's flight or attempted flight, in conjunction with the fact he arrived at and was proceeding toward a residence linked to a very recent shooting, and the information known to law enforcement regarding the shooting, gave the officers' reasonable cause to stop Lindsey for investigatory purposes in order to "confirm or dispel suspicions of criminal activity." Kreps, 650 N.W.2d at 641.
IV. CONCLUSION AND DISPOSITION.
Based on our de novo review of the totality of the circumstances, we conclude the detaining officers here had a particularized and objective basis for suspecting legal wrongdoing and thus the investigatory stop was justified. We affirm the trial court's denial of Lindsey's motion to suppress. We further conclude there was insufficient evidence to support Lindsey's conviction for failure to affix a drug tax stamp. We reverse the judgment of conviction on this count and remand to the district court for entry of an order dismissing the charge of failure to affix a drug tax stamp.